Legal Corner

Workers' Compensation
Long-standing WCAB Grant-for-Study procedure struck down - California

A longstanding practice of the Workers' Compensation Appeals Board (WCAB) of granting Petitions for Reconsideration for Further Study has been nixed by the Court of Appeal for the Second District in Michele Earley et al. v. WCAB. The significant increase in the number of grant-for-study orders meant that cases could wait for months, even years, to be decided. To satisfy a requirement to act within 60 days, many were awarded with a boilerplate statement that further study is needed based on the initial review of the record.

While the Board argued that compliance is impossible with the limited time and staff available, the court made it clear that the Board is not required to issue a final ruling on the merits of a petition for reconsideration within 60 days. However, it must state the evidence relied upon and "specify in detail" the reasons for the decision.

Guard seriously injured in pre-planned attack not entitled to additional benefits - California

State law allows if the employer's serious and willful misconduct causes injury to a worker, the compensation to the worker increases by one-half. In the California Department of Corrections and Rehabilitation (CDCR) v. WCAB and Michael Ayala, a correctional officer was severely injured in a pre-planned attack by inmates. When he filed for comp benefits, he alleged the CDCR's willful misconduct caused the injury. While it was agreed he was entitled to permanent disability, there was disagreement as to whether the CDCR committed serious and willful misconduct.

The Workers' Compensation Appeals Board (WCAB) reversed the denial of a judge and found the CDCR had received a report of a credible threat of inmate violence, failed to act upon the threat, and took the facility out of lockdown regardless of the threat. It also determined that base compensation was what the corrections officer received while on industrial disability leave and enhanced industrial disability leave. The CDCR argued that industrial disability benefits were not considered "compensation." The distinction was important because the 50% benefit increase is based on "compensation."

An appeals court overturned the WCAB ruling, finding compensation for additional benefits did not include industrial disability leave and enhanced industrial disability leave and sent the case back to the WCAB.

Injuries from shooting during shift not compensable - Florida

In Normandy Insurance Co. v. Bouayad, a rental car employee was shot seven times at close range at midnight while walking along a covered walkway from a kiosk desk inside a hotel to a neighboring office where he would file rental agreements and cash. Video surveillance did not show any evidence of an attempted robbery.The comp insurer appealed a judge's decision to award the claim noting there was evidence that there was a possible personal reason for the shooting, however, this was never proven.

While the appeals court found that the employee failed to prove his injuries arose out of his employment, it took the unusual action of asking the Supreme Court to determine "When an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor's act satisfy the occupational causation element... necessary for compensability?"

Aortic aneurysm does not meet definition of heart disease - Florida

In North Collier Fire Control v. Harlem, an appeals court vacated workers compensation benefits for a firefighter who suffered a thoracic aortic aneurysm. The state statute provides that a firefighter's "condition or impairment of health" resulting in a disability is "presumed to [be] accidental and to have been suffered in the line of duty," if the condition or impairment is "caused by tuberculosis, heart disease, or hypertension."

The claim revolved around the definition of "heart disease" under that state statute for firefighters. A judge of compensation claims found the aneurysm fit within the meaning of heart disease, but an appeals court disagreed. Departing from legal precedent, the court said heart disease in the comp system only relates to "diseases affecting and weakening the heart muscle through a degradation of the vessels or the valves."

Court clarifies suspending benefits following release to full duty - Georgia

In City of Atlanta v. Sebastian, the Court of Appeals ruled that benefits for an injured employee were improperly terminated when a referred specialist cleared him to return to work without any recommendation from the treating physician. While the court acknowledged that the law is silent as to how a worker's benefits may be suspended following a release to full-duty work, it noted the Board's rules require the worker must cleared to return to work "without restrictions from the authorized treating physician."

Exclusive remedy precludes suit over son's murder on the job - Illinois

In Price v. Lunan Roberts Inc., an appeals court upheld the ruling that the mother of an Arby's worker who was murdered by a coworker can't sue the franchisees because the slaying occurred while on the job. She claimed the businesses were liable for her son's death through negligent hiring, retention, and supervision of their employees and that the attack was personal, not just a workplace incident. While the issue of whether the attack was work-related or personal was relevant, the court found insufficient evidence of a personal dispute. Hence, workers compensation is the exclusive remedy.

High court adopts new test for compensability of mental injuries - Michigan

In Cramer v. Transitional Health Services of Wayne, the Supreme Court adopted a new test to determine whether an employee's mental injuries are compensable under workers compensation. It noted that the four-factor test, the Martin standard, it created in 2002 as a guide has "morphed into a straitjacket." Under the new test, a worker must show that the mental injury was significantly caused or aggravated by the employment, considering the totality of all occupational factors and all the worker's health circumstances and nonoccupational factors.

In this case, a dietary worker fell from a ladder and two months later began having seizures. A judge denied her claim for post-traumatic stress disorder and non-epileptic seizures based on the Martin standard and an appellate court confirmed. On appeal, the Supreme Court noted the statute provides mental injuries are compensable if employment "contributed to or aggravated or accelerated" them in a significant manner. While the Martin test was intended to interpret "significant," the court found it imposed a higher-than-required burden on injured workers.

It then adopted a new, totality of the circumstances test based on its 1993 decision in Farrington v Total Petroleum, Inc. The court offered a list of occupational factors that must be considered when conducting the analysis including the time between the injury and the work event and the physical stress to which the worker was subjected, as well as the conditions of employment. It noted other relevant factors could be considered and these factors are "not all inclusive" and must be examined together with the totality of the worker's health circumstances.

Rare case exception allows departure from treatment parameter rules - Minnesota

In McKeever v. Cub Foods, a worker experienced a low back injury that proved to be very difficult to treat. Ultimately, sympathetic block injection therapy provided enough relief to minimize the worker's opioid use and emergency room visits. However, this relief typically lasted for only one or two months. A workers' compensation judge found that the employee's therapy was reasonable and necessary and qualified as a "rare case exception" to the treatment parameters and awarded payment for the therapy.

In affirming the decision, the appeals court noted the worker was able to seek out and return to employment, decrease her use of opioids, and the injections improved her functional ability.

Insurance auditor denied benefits for psychological injury - New York

In Sakanovic v. Utica Mutual Insurance Co., an appellate court upheld a denial of benefits to an insurance auditor for an alleged psychological injury brought on by her workplace stress. She claimed to have an anxiety attack at work in 2020 during a text-based Skype conversation with her supervisor. She visited an urgent care center and was taken by ambulance to an emergency room and admitted to the ICU. After being diagnosed with "essential hypertension, migraine without aura and hypertension urgency," she was released a day later.

A workers compensation judge disallowed the claim and the Workers' Compensation Board affirmed, finding that no physical injury or symptoms resulted from the alleged increase in workplace stress and the stress that caused the claimed mental injury was not "greater than that experienced by other similarly situated workers."

City can recover through subrogation benefits paid through the Heart and Lung Act - Pennsylvania

In Tiano v. City of Philadelphia, a police officer fell into a utility pole owned by PECO Energy Co. and reached a $450,000 settlement with PECO. The city asserted it was entitled to third-party recovery for benefits already paid, but a comp judge denied the petition, saying recovery could only be related to workers comp benefits paid after the settlement agreement was reached, not Heart and Lung Act benefits. However, a comp review board reversed, noting since the settlement arose from a non-motor vehicle action, the city had a subrogation right to any benefits paid from the date of the work injury. The appeals court affirmed.

Pregnant teacher entitled to award for PTSD - Pennsylvania

In School District of Philadelphia v. Smith, the Commonwealth Court upheld an award of benefits and penalties to a pregnant special education teaching assistant for her psychological injury after being punched in the stomach by a student. While the School District accepted liability for an abdominal muscle strain, it contested the claim of psychological injury.The court found that the physical/mental injury standard was correctly applied and ordered the school district to pay penalties for failure to offer timely compensation.

The court noted, to be compensable the physical injury must require medical treatment, and the mental injury must relate to the initial physical stimulus. There was no dispute that she sought and received medical treatment immediately after the incident and on remand, a judge found the teacher proved the physical injury caused the psychological one. The court also upheld the award of ongoing total disability benefits, since the district presented no evidence it could accommodate her light duty restrictions.

Case to watch - Teacher sues School Board over shooting - Virginia

The pending case, Abigail Zwerner v. Newport News School Board, involves a former elementary school teacher who was badly injured when shot by a six-year-old student. She alleges the school district knew the student had a history of violence and had inadequately searched the child who had told others he had a gun. She's seeking $40 million in damages and the district is arguing the case falls under the exclusive remedy provisions.

In August, the parties agreed that no first-grade teacher should expect to be shot while at school. This goes directly to the issue that the judge will have to decide, which is whether it is an actual risk of a Newport News school teacher to sustain this type of injury or encounter such circumstances at work. However, all agree the case turns on if the incident can be categorized as a workplace injury. A Newport News Circuit Court judge is expected to rule in October on whether the suit can proceed and has allowed both parties to proceed with discovery.

Increasing school violence throughout the country raises questions about whether educators who are injured and eligible for workers compensation can sue their employers. In many states, including Virginia, to bypass comp exclusive remedy, an injured worker would have to prove an "intentional act" by the employer, which is a very high bar.